Highlights from MurthyChat Session: 25.Feb.2013

In frequent sessions of our Chat, Sheela Murthy and other senior attorneys provide guidance that clarifies the law in real time. For details on chat participation, click here.

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Question: This is regarding the PERM filing process. Is it required to have a letter signed from the employee saying the employee has not paid anything towards the PERM filing? If one has not done so, does that increase the chances of getting an RFE?

Senior Attorney:

In the PERM process, the U.S. Department of Labor issues audits, not RFEs. The PERM filing is based upon attestations, only. The employer must retain the supporting documents, proving recruitment and compliance, and must produce these in response to an audit, if requested. We have seen audits that address the issue of payment of the fees associated with the PERM filing. The response to this typically requires an affidavit from both the employer and sponsored foreign national. The employer files the PERM. It is the employer's attestations that are at issue. If needed, the employer should have proof that they made all PERM related payments, if the matter is ever challenged.

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Question: If a perm labor is applied for in 5th year of H1B and is under audit, can one eligible for another year of H1B extension after 6 years of H1B if the audit is not cleared before the end of 6th year?

Senior Attorney:

Yes, if the PERM labor certification filing was submitted more than 365 days ago, and the case is still pending, the beneficiary would be eligible for a one-year extension of H1B status beyond the 6-year limit. So, in this example, the individual's employer could file for the 7th year of H1B status and, if the case is still pending for some reason a year later, the employer could request another extension for year 8. There is no limit to the number of these extensions, as long as the PERM case is pending.

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Question: My sister's F-1 visa was rejected and she was admitted to University of Illinois. My brother and I are in the United States and in H1B status. What are her chances of getting an F-1 visa?

Senior Attorney:

F-1 visas typically are rejected under INA 214(b) for immigrant intent concerns. These matters are very discretionary and somewhat arbitrary. It is impossible to estimate the chances of success. But, I would suggest contacting Murthy Immigration Services, Pvt. Ltd. in Chennai. Our affiliate office in India helps people with visa issues at the consulates. They may be able to assist and prepare the case in a way that could increase her chances of obtaining the visa.

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Question: When the petition for extension of H1B status is denied and existing I-94 is already expired, does that mean the beneficiary has to leave U.S. immediately, or can he remain in the country if a motion to reopen (MTR) the denial is filed timely?

Senior Attorney:

The filing of an MTR does NOT keep one in a legal status in the United States. The MTR only restores the lawful stay if the MTR is granted, and the person will only regain status if the case that was denied is both reopened AND approved. The wisdom and risks of staying in the United States should be discussed with the attorney involved in the case. We at the Murthy Law Firm could provide a second opinion, if desired. What is important is the strength of the arguments in the MTR and the amount of unlawful presence that has accrued already.

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Question: My question involves visits from relatives who have valid 10-year U.S. visitors' visas. Can they visit twice in the same year within the span of a few months if they honor their 6-month I- 94 permits, if they are not currently employed in India and have no dependents?

Senior Attorney:

There isn't a specific limit on the amount of time and the frequency of a person's visits on the B-1/B-2 visa. But, the decision to allow or prohibit B-1/B-2 admissions is up to the port-of-entry officers. If one comes to the U.S. for six months and returns a few months later with a request to stay another six months, the POE officer may think that the foreign national is not really just visiting. Usually, a genuine tourist-type visit can be completed in six months or less, and questions will be raised if the person tries to reenter after a short period outside of the U.S. Of course, there can always be unusual situations and emergencies that may justify this type of travel pattern, but the decision is made at the POE.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.